Citation Nr: 0020555
Decision Date: 08/04/00 Archive Date: 08/09/00
DOCKET NO. 95-066 79 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to an increased rating for residuals of a
left elbow injury with resection of left radius head and neck
and degenerative joint disease, currently evaluated as 30
percent disabling.
2. Whether a separate rating is warranted for scarring of
the left elbow attributable to the service connected left
elbow injury?
REPRESENTATION
Kathy A. Lieberman, Attorney
ATTORNEY FOR THE BOARD
D. A. Saadat, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1965 to
July 1967.
By a September 1990 rating action, the Department of Veterans
Affairs (VA) Regional Office (RO) in Roanoke, Virginia,
granted service connection for residuals of an injury to the
left elbow, status post resection of head and neck of left
radius, and assigned a 10 percent disability rating effective
from November 1988. By a September 1994 rating action, the
RO denied an increased rating for this service-connected
condition, and the veteran perfected an appeal in this
regard. By a May 1997 rating action, the RO increased the
rating for "left shoulder injury with resection of left
radius head and neck and degenerative joint disease" to 30
percent, effective from July 1994.
In July 1997, the Board of Veterans' Appeals (Board) remanded
the veteran's claim for additional development. In a March
1999 supplemental statement of the case, the RO confirmed the
30 percent rating for the veteran's service connected left
elbow condition.
In June 1999, the Board denied a rating in excess of 30
percent for residuals of a left elbow injury with resection
of left radius head and neck and degenerative joint disease.
The Board also remanded the issue of entitlement to an
extraschedular rating under 38 C.F.R. § 3.321 for additional
development. The veteran appealed the denial of an increased
rating to the United States Court of Appeals for Veterans
Claims (hereinafter "the Court"). In July 1998, the Court
granted the parties' joint motion for remand. In the motion,
the parties asked the Court to vacate the Board's decision
and remand the matter of entitlement to rating in excess of
30 percent for residuals of a left elbow injury with
resection of left radius head and neck and degenerative joint
disease. The parties also noted in the motion that the issue
of an extraschedular remand was not a part of the appeal to
the Court. The case was subsequently forwarded to the
undersigned. A copy of the Court's November 15, 1999,
Memorandum Decision, which constitutes the mandate of the
Court, has been placed in the claims file.
As an initial matter, the Board notes that although the issue
of entitlement to an extraschedular rating under 38 C.F.R. §
3.321 was not the subject of the veteran's appeal to the
Court, it remains at issue before the Board. The RO should
ensure that the directives contained in the Board's July 1997
remand are followed and that this issue be considered.
Moreover, the RO's attention is directed to the letter from
the veteran's attorney dated in May 2000 in which additional
claims are raised.
Also, as noted in the Board's July 1997 decision/remand, in
the May 1997 rating decision and statement of the case, the
RO had characterized the veteran's service-connected
condition as one involving the left shoulder. However, the
substantive discussion and legal analysis in both documents
centered on the veteran's left elbow. Therefore, the Board
considers the reference to the left shoulder to be a mere
typographical error.
On his February 1995 Form 9, the veteran requested a hearing
at the RO before a member of the Board. This Travel Board
hearing was scheduled to take place in March 1997. However,
the veteran subsequently advised the RO in writing that he
was unable to make the hearing due to a lack of funds or
transportation to Roanoke.
In view of the fact that a Remand is necessary to determine
whether a separate rating is warranted for scarring of the
left elbow attributable to the service connected disability,
this matter is listed separately on the title page of the
decision as opposed to being included in Issue number 1.
FINDINGS OF FACT
1. The veteran has asserted that his residuals of a left
elbow injury with resection of left radius head and neck and
degenerative joint disease are worse than currently evaluated
by the RO; all relevant evidence necessary for an equitable
disposition of the veteran's claim has been obtained by the
RO.
2. The veteran's service-connected residuals of a left elbow
injury with resection of left radius head and neck and
degenerative joint disease is productive of disability
equivalent to no greater than impairment of radius with loss
of bone substance and marked deformity; neither flail joint
nor false flail joint of the left elbow is present.
3. The veteran has limitation of supination of the left
elbow to 30 degrees or less; neither the limitation of
flexion or extension of the left elbow meets the criteria for
compensable ratings under the appropriate Diagnostic Codes.
CONCLUSIONS OF LAW
1. The veteran has stated a well-grounded claim for an
increased rating for residuals of a left elbow injury with
resection of left radius head and neck and degenerative joint
disease, and VA has satisfied its duty to assist him in
developing facts pertinent to this claim. 38 U.S.C.A. §
5107(a) (West 1991); 38 C.F.R.
§ 3.103(a) (1999).
2. The criteria for an evaluation in excess of 30 percent
for residuals of a left elbow injury with resection of left
radius head and neck and degenerative joint disease, based on
factors other than the presence of arthritis and limitation
of motion, have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 3.321(a), 4.1, 4.2, 4.7, 4.14,
4.20, 4.31, 4.40, 4.45, 4.71 Plate I, 4.71a, Diagnostic Codes
5209, 5210, 5211, 5212 (1999).
3. A separate 10 percent rating is warranted, under the
provisions of 38 C.F.R. Part 4, Diagnostic Code 5213, for
service connected residuals of a left elbow injury with
resection of left radius head and neck and degenerative joint
disease, based on the presence of arthritis and limitation of
motion. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1,
4.2, 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5205, 5206,
5207, 5208, 5213 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
By a September 1990 rating decision, the RO granted service
connection for residuals of left elbow injury, status post
resection of head and neck of left radius.
In a July 1994 written statement, the veteran asserted that
he had discomfort of his left elbow, which especially
bothered him in the cold months. The disability had always
limited certain tasks, including lifting. The veteran would
visit a VA hospital off and on for heat treatment.
The veteran underwent a VA joint examination in August 1994.
He reported continued pain and said that he could not lift
more than 50 lbs. He noticed aching in his elbow during the
winter and would take Motrin as needed (although he did not
require it on a regular basis). The veteran asserted that
his left elbow condition had prevented him from getting
certain jobs, and that he was currently only able to work as
a driver, as it did not require any lifting. Upon
examination, there was no swelling or deformity of the left
elbow. The veteran had a four-inch surgical scar on the
anterior surface of the left elbow. Range of motion was
normal. The veteran had no tenderness to palpation nor any
bony deformity which could be felt or palpated. Muscle
development was equal in both arms; there was no atrophy on
the left. By X-ray the veteran apparently had post-surgical
deformity of the left elbow with degenerative joint disease.
By a September 1994 rating decision, the RO confirmed the 10
percent rating for residuals, injury to left elbow, status
post resection of head and neck of left radius.
In his September 1994 notice of disagreement, the veteran
asserted that his left elbow had continued to cause him pain
and discomfort since he injured it during active duty. He
could not even lift his left arm.
In his February 1995 substantive appeal, the veteran
essentially reasserted that he was limited to certain tasks
due to his left elbow condition and described his arthritis
as being quite painful.
In a March 1997 written statement, the veteran reported that
he still had pain in his left elbow, especially in the winter
months. He continued to take medication for this condition.
His motion was not good and his alignment was "pretty bad,"
particularly in attempting to lift. He was limited to a
certain degree of movement. His flail joint displayed loss
of motion and a lot of "false movement." The veteran
asserted that he was unemployed at present, and could only
work part time due to his left elbow condition.
In April 1997, medical records from the VA Medical Center
(VAMC) in Richmond, Virginia were associated with the claims
file. These records reflect, in pertinent part, surgeries
and follow-up treatment in 1996 relating to abscesses of the
left forearm apparently caused by cellulitis. On an
admission in November 1996, the cellulitis was attributed to
an intravenous injection.
The veteran underwent another joint examination for VA
purposes in May 1997. He complained of "weather ache,"
occasional swelling, pain with increased use, and increased
pain depending on the amount of weight lifted. The veteran
had increased pain after using his elbow for strenuous
activities such as pushing down or heavy lifting. He avoided
certain activities to decrease his pain. He did not use his
left arm except for "helpful extremity." He did not do any
heavy lifting, pushing or pulling. The veteran denied any
trouble with gripping and denied any neurological symptoms.
Upon examination, the veteran had an increased carrying
angle, or valgus deformity, involving the left elbow of 15
degrees. The right elbow had six degrees. There was a well-
healed surgical scar extending from the lateral aspect of the
left elbow to the proximal forearm, measuring four
centimeters. There was surrounding swelling. A slight
increase in laxity involving the lateral ligament of the left
elbow was noted. Elbow range of motion was from 10 degrees
to 150 degrees, equal to the opposite side. The veteran
lacked 10 degrees of full supination and went from 0 degrees
to 50 degrees. No crepitus on range of motion was noted, but
there was generalized thickening involving the elbow joint.
X-rays of the elbow revealed "classic degenerative changes"
involving the ulnar and distal humerus. There was no radial
head; at least two centimeters of it had been resected. The
examiner's impression, in pertinent part, was that the
veteran had increased valgus deformity and mild laxity
involving the radial collateral ligament. He had lost some
ability to supinate his hand as a result. His activities had
been significantly restricted in terms of avoiding strenuous
and heavy work with the left arm.
By a May 1997 rating action, the RO increased the rating for
"left shoulder injury with resection of left radius head and
neck and degenerative joint disease" to 30 percent,
effective from July 1994.
In a June 1997 written statement, the veteran asserted that
he had "false movement" due to loss of bone substance, as
well as bad alignment, functional loss, and weakness. His
hand and wrist did not approach full pronation, which was
seriously disabling.
In July 1997, the Board remanded the veteran's claim for
additional development.
In an August 1997 letter to the veteran, the RO requested
that he submit evidence showing treatment for his left elbow
condition from April 1997 to present. The veteran did not
respond to this letter.
In October 1997, additional records from the Richmond VAMC
were associated with the claims file. These records, in
pertinent part, are duplicative of those summarized above.
In December 1997, the veteran underwent another joints
examination for VA purposes. In his report, the VA examiner
first noted that he did not have the claims file available
for review. Normal range of motion for the elbow was noted
to be from 0 degrees of extension to 145 degrees of flexion.
Upon examination, the veteran had 20 degrees to 135 degrees
flexion, meaning that he was unable to extend his elbow
beyond 20 degrees or had a contracture of approximately 20
degrees. He had an increased cubital carrying angle of 15
degrees on that extremity as compared to 7 degrees on his
right and normal extremity. The veteran also demonstrated
increased valgus and varus laxity involving the elbow, but
there was no significant anterior or posterior laxity
involving the elbow, so in the examiner's opinion, it did not
qualify specifically as a flail joint.
Normal pronation to the elbow and wrist was noted to be from
0 to 80 degrees; the veteran demonstrated 0 to 85 degrees of
pronation. Normal supination was noted to be from 0 to 85
degrees; the veteran demonstrated 0 to 65 degrees of
supination. The veteran gave a history of having increased
pain and discomfort with weather. During the summertime, he
did not have trouble with his elbow, but his problems
worsened during the winter. When he did have aches and
pains, he often relied upon Advil for relief. The veteran
would occasionally take a prescribed Percocet if the pain was
severe. He would not use the extremity when his pain
worsened; he simply limited use by holding it to his side or
by propping it up on pillows when sleeping.
The VA examiner noted that he could not adequately assess
from the veteran's history how much further loss of range of
motion was due to fatigability or how much further weakened
movement was due to increased pain or discomfort. It was not
clinically possibly to do that. The VA examiner could only
rely upon what was available to him the day of the
examination. It was the examiner's opinion, however, that
pain would certainly limit the veteran's ability to utilize
the elbow as well. The examiner noted that the veteran's
present range of motion (which exceeded 50 degrees) was not
equivalent to ankylosis.
The veteran worked as a counselor and was able to carry out
all activities he needed to do for the job, except for
playing strenuous sports such as throwing and catching.
Otherwise, he was able to carry on meaningful employment.
The examiner did not believe that the veteran would have been
capable of heavy labor that required lifting in excess of 20
to 30 pounds with that extremity. The extremity was not
stable enough to withstand those kinds of forces. The
veteran would not be able to climb, crawl sufficiently or
support himself with a one arm support using that extremity.
The veteran underwent another joints examination for VA
purposes in February 1999. It was noted that the veteran was
right hand dominant and presently unemployed. The claims
file was available and reviewed by the examiner, who was the
same physician who conducted the December 1997 examination.
The veteran reported aches and pains primarily caused by
changes in weather and season. He avoided heavy lifting
since his left arm would not support it. He did not do
pushups or pull-ups or a great deal of pushing or pulling
with the extremity. He did not use the arm to lift himself
up out of a chair because he did not trust it. With normal
activities of daily living, he did not have a great deal of
pain involving the arm and only took Ibuprofen occasionally.
The examiner noted that the abscesses suffered by the veteran
on both arms were not due to his service connected
disability.
Upon examination, the left elbow had a well-healed surgical
scar on the lateral aspect that measured 6 centimeters.
There were multiple surgical scars involving both forearms.
The left elbow had an increased carrying angle or cubitus
valgus positioning of 20 degrees where as the right elbow had
10 degrees. There was increased laxity involving the medial
collateral ligament, and the elbow, when stressed in valgus,
could be displaced to 30 degrees. There was some instability
involving the elbow itself. Elbow extension lacked 10
degrees of being fully extended and had flexion to 130
degrees whereas the veteran's right arm revealed 10 degrees
less than having full extension and flexion to 140 degrees.
A normal elbow range of motion was anywhere from 0 to 145
degrees. The veteran had full pronation involving his left
forearm but supination was limited from 0 to 10 degrees with
normal supination being from 0 to 85 degrees and normal
pronation being from 0 to 80 degrees.
Radiographs of the elbow revealed degenerative joint changes
which were diffuse involving the humeral and ulnar joint.
The radial head and proximal radial had been resected
radiographically. These X-rays were done in May 1997 and no
additional X-rays were done.
The examiner's impression was that the veteran had status
post radial head fracture with resection of the radial head
as a former treatment resulting in increased valgus deformity
and some increased ligament laxity involving the medial
collateral ligament. The elbow was not flailed nor was it
fused in a fixed position, but there was instability present.
According to the VA examiner, the veteran was unable to do
any loaded activities that required a great deal of force
such as to support body weight with the left upper extremity.
The VA examiner was unable to say if the veteran had weakened
movement, increased pain, or incoordination with excess use
of the arm, and was unable to state to what number of degrees
of additional range of motion that that would interpret to if
he had those conditions. According to the examiner, the
scope of the examination did not allow this to be explored to
the extent that was necessary to give an objective answer.
In a March 1999 supplemental statement of the case, the RO
confirmed the 30 percent rating for left elbow injury with
resection of the left radius head and neck and degenerative
joint disease.
In May 2000, a letter and medical records were received from
Thomas E. Scott, M.D. The veteran's attorney, in a letter
dated that same month, waived consideration of this evidence
by the RO. In the letter dated in August 1999, Dr. Scott
reported the veteran suffers from left elbow pain. In a
medical record dated in July 1999, it was reported that the
veteran had slightly decreased range of motion of his left
elbow.
II. Analysis
The first responsibility of a claimant is to present a well
grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim
for an increased evaluation is well grounded if the claimant
asserts that a condition for which service connection has
been granted has worsened. Proscelle v. Derwinski, 2 Vet.
App. 629, 632 (1992). In this case, the veteran has asserted
that the symptoms of his residuals of a left elbow injury
with resection of left radius head and neck and degenerative
joint disease are worse than currently evaluated, and he has
thus stated a well grounded claim.
VA has a duty to assist the veteran in the development of
facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1999). The U.S. Court of
Appeals for Veterans Claims (Court) has held that the duty to
assist includes obtaining available records which are
relevant to the claimant's appeal. The duty to assist is
neither optional nor discretionary. Littke v. Derwinski, 1
Vet. App. 90 (1990). It may include providing the veteran
with a medical examination to determine the nature and extent
of his disability. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). The Department in this case has accorded the veteran
four examinations and obtained outpatient medical records.
The duty to assist has been satisfied.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §
3.321(a) and Part 4. Separate diagnostic codes identify the
various disabilities. 38 C.F.R. § 4.1 requires that each
disability be viewed in relation to its history and that
there be emphasis upon the limitation of activity imposed by
the disabling condition. 38 C.F.R. § 4.2 requires that
medical reports be interpreted in light of the whole recorded
history, and that each disability must be considered from the
point of view of the veteran working or seeking work. 38
C.F.R. § 4.7 provides that, where there is a question as to
which of two disability evaluations shall be applied, the
higher evaluation is to be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating is to be assigned. When
an unlisted condition is encountered, it is permissible to
rate it under a closely related disease or injury in which
not only the functions affected, but the anatomical
localization and symptomatology are closely analogous. 38
C.F.R. § 4.20. These requirements for evaluation of the
complete medical history of the claimant's condition operate
to protect claimants against adverse decisions based on a
single, incomplete or inaccurate report and to enable VA to
make a more precise evaluation of the level of the disability
and of any changes in the condition. Schafrath, 1 Vet. App.
589 (1991). Moreover, VA has a duty to acknowledge and
consider all regulations which are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusion.
Federal regulations further provide:
Disability of the musculoskeletal system
is primarily the inability, due to damage
or infection in parts of the system, to
perform the normal working movements of
the body with normal excursion, strength,
speed, coordination and endurance. It is
essential that the examination on which
ratings are based adequately portray the
anatomical damage, and the functional
loss, with respect to all these elements.
The functional loss may be due to absence
of part, or all, of the necessary bones,
joints and muscles, or associated
structures, or to deformity, adhesions,
defective innervation, or other
pathology, or it may be due to pain,
supported by adequate pathology and
evidenced by the visible behavior of the
claimant undertaking the motion.
Weakness is as important as limitation of
motion, and a part which becomes painful
on use must be regarded as seriously
disabled. A little used part of the
musculoskeletal system may be expected to
show
evidence of disuse, either through
atrophy, the condition of the skin,
absence of normal callosity, or the like.
38 C.F.R. § 4.40 (1999).
As regards the joints the factors of
disability reside in reductions of their
normal excursion of movements in
different planes. Inquiry will be
directed to these considerations:
(a) Less movement than normal (due to
ankylosis, limitation or blocking,
adhesions, tendon-tie-up, contracted
scars, etc.).
(b) More movement than normal (from
flail joint, resections, nonunion of
fracture, relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle
injury, disease or injury of peripheral
nerves, divided or lengthened tendons,
etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to
execute skilled movements smoothly.
(f) Pain on movement, swelling,
deformity or atrophy of disuse.
Instability of station, disturbance of
locomotion, interference with sitting,
standing and weight-bearing are related
considerations.
For the purpose of rating disability from
arthritis, the shoulder, elbow, wrist,
hip, knee, and ankle are considered major
joints; multiple involvements of the
interphalangeal, metacarpal and carpal
joints of the upper extremities, the
interphalangeal, metatarsal and tarsal
joints of the lower extremities, the
cervical vertebrae, the dorsal vertebrae,
and the lumbar vertebrae, are considered
groups of minor joints, ratable on a
parity with major joints. The
lumbosacral articulation and both
sacroiliac joints are considered to be a
group of minor joints, ratable on
disturbance of lumbar spine functions.
38 C.F.R. § 4.45 (1999).
In DeLuca v. Brown, the Court held that in evaluating a
service-connected disability involving a joint, the Board
erred in not adequately considering functional loss due to
pain under 38 C.F.R. § 4.40 and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45. The Court held that
Diagnostic Codes pertaining to range of motion do not subsume
38 C.F.R. § 4.40 and § 4.45, and that the rule against
pyramiding set forth in 38 C.F.R. § 4.14 does not forbid
consideration of a higher rating based on a greater
limitation of motion due to pain on use, including use during
flare-ups. The Court remanded the case to the Board to
obtain a medical evaluation that addressed whether pain
significantly limits functional ability during flare-ups or
when the joint is used repeatedly over time. The Court also
held that the examiner should be asked to determine whether
the joint exhibits weakened movement, excess fatigability, or
incoordination. If feasible, these determinations were to be
expressed in terms of additional range of motion loss due to
any pain, weakened movement, excess fatigability, or
incoordination.
The Court has held that a service-connected disability may be
assigned separate disability ratings under more than one
diagnostic code, as long as none of the symptomatology for
any one of the conditions is duplicative of or overlapping
with the symptomatology of the other conditions. See Esteban
v. Brown, 6 Vet. App. 259, 261-262 (1994). Moreover, in a
precedent opinion, the General Counsel of VA held that a
veteran who has arthritis and instability of a joint may
receive separate ratings under Codes 5003 and the applicable
criteria pertaining to instability. See VAOPGCPREC 23-97
(July 1, 1997; revised July 24, 1997). Moreover, the VA
General Counsel has since held that separate ratings are only
warranted in these types of cases when the veteran has
limitation of motion in the involved joint such as to at
least meet the criteria for a zero-percent rating under the
appropriate diagnostic codes, or (consistent with DeLuca v.
Brown, 8 Vet. App. at 204-7 and 38 C.F.R. §§ 4.45 and 4.59)
where there is probative evidence showing the veteran
experiences painful motion attributable to his arthritis.
See VAOPGCPREC 9-98 (Aug. 14, 1998).
The veteran is right hand dominant. The criteria used for
evaluating elbow disabilities of the minor extremity are as
follows:
5205 Elbow, ankylosis of:
Unfavorable, at an angle of less than 50° or
with
complete loss of supination or
pronation . . . . . . 50 Intermediate, at an
angle of more than 90°, or between
70° and 50°. . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 40
Favorable, at an angle between 90° and 70° . .
. . . . . . . 30
5206 Forearm, limitation of flexion of
Flexion limited to 45° . . . . . . . . . . . .
. . . . . . . . . . . . . . 40
Flexion limited to 55° . . . . . . . . . . . .
. . . . . . . . . . . . . . . 30
Flexion limited to 70° . . . . . . . . . . . .
. . . . . . . . . . . . . . 20
Flexion limited to 90° . . . . . . . . . . . .
. . . . . . . . . . . . . . . 20
Flexion limited to 100° . . . . . . . . . . .
. . . . . . . . . . . . . . . 10
Flexion limited to 110° . . . . . . . . . . .
. . . . . . . . . . . . . . . . 0
5207 Forearm, limitation of extension of
Extension limited to 110° . . . . . . . . . .
. . . . . . . . . . . . . . 40
Extension limited to 100° . . . . . . . . . .
. . . . . . . . . . . . . . 30
Extension limited to 90° . . . . . . . . . . .
. . . . . . . . . . . . . . 20
Extension limited to 75° . . . . . . . . . . .
. . . . . . . . . . . . . . 20
Extension limited to 60° . . . . . . . . . . .
. . . . . . . . . . . . . . 10
Extension limited to 45° . . . . . . . . . . .
. . . . . . . . . . . . . . 10
5208 Forearm, flexion limited to 100° and extension to
45°. . . . . . . 20
5209 Elbow, other impairment of Flail joint . . . . . .
. . . . . . . . . . . . . 50
Joint fracture, with marked cubitus varus or
cubitus valgus
deformity or with ununited fracture of head of
radius 20
5210 Radius and ulna, nonunion of, with flail false
joint . . . . . . . . . 40
5211 Ulna, impairment of:
Nonunion in upper half, with false movement:
With loss of bone substance (1 inch (2.5
cms.)
or more) and marked deformity . . .
. . . . 30
Without loss of bone substance or
deformity 20 Nonunion in lower
half . . . . . . . . . . . . . . . . . . 20
Malunion of, with bad alignment . . . .
. . . . . . . 10
5212 Radius, impairment of:
Nonunion in lower half, with false movement:
With loss of bone substance (1 inch (2.5
cms.)
more) and marked deformity . . . . .
. . . . . 30
Without loss of bone substance or
deformity . . . 20
Nonunion in upper half . . . . . . . . .
. . . . . . . . . . . 20 Malunion of,
with bad alignment . . . . . . . . . . . . .10
5213 Supination and pronation, impairment of:
Loss of (bone fusion):
The hand fixed in supination or
hyperpronation . . 30
The hand fixed in full pronation . . . .
. . . . . . . . . . 20 The hand fixed
near the middle of the arc or
moderate pronation . . . . . . . . . . . . . . . . . . .
20
Limitation of pronation:
Motion lost beyond middle of arc . . . .
. . . . . . . . . 20
Motion lost beyond last quarter of arc,
the hand
does not approach full pronation . .
. . . . . . . 20
Limitation of supination:
To 30° or less . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . 10
38 C.F.R. § Part 4.71a, Diagnostic Codes 5205-5213 (1999).
38 C.F.R. § 4.71 Plate I (1999) indicates that normal range
of elbow motion is between zero degrees and 145 degrees, with
zero degrees representing full extension, and 145 degrees
representing full flexion. 38 C.F.R. § 4.71, Plate I. Normal
forearm pronation is zero degrees to 80 degrees; normal
supination is zero degrees to 85 degrees. Id.
Diagnostic Code 5003 specifies that degenerative arthritis
established by X-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved. When however, the
limitation of motion of the specific joint or joints involved
is noncompensable under the appropriate diagnostic codes, a
rating of 10 percent is for application for each such major
joint or group of minor joints affected by limitation of
motion, to be combined, not added under diagnostic code 5003.
Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. In the absence of limitation of
motion, the veteran's disability is to be rated as follows:
With X-ray evidence of involvement of 2 or more major joints,
or 2 or more minor joint groups, with occasional
incapacitating exacerbations, a 20 percent rating is awarded.
With X-ray evidence of involvement of 2 or more major joints
or 2 or more minor joint groups a 10 percent rating is
assigned. Note (1): The 20 pct and 10 pct ratings based on
X-ray findings, above, will not be combined with ratings
based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic
Code 5003 (1999).
Federal regulations also provide, in pertinent part, as
follows:
With any form of arthritis, painful
motion is an important factor of
disability, the facial expression,
wincing, etc., on pressure or
manipulation, should be carefully noted
and definitely related to affected
joints. Muscle spasm will greatly assist
the identification. Sciatic neuritis is
not uncommonly caused by arthritis of the
spine. The intent of the schedule is to
recognize painful motion with joint or
periarticular pathology as productive of
disability. It is the intention to
recognize actually painful, unstable, or
malaligned joints, due to healed injury,
as entitled to at least the minimum
compensable rating for the joint.
Crepitation either in the soft tissues
such as the tendons or ligaments, or
crepitation within the joint structures
should be noted carefully as points of
contact which are diseased. Flexion
elicits such manifestations. The joints
involved should be tested for pain on
both active and passive motion, in
weight-bearing and nonweight-bearing and,
if possible, with the range of the
opposite undamaged joint.
38 C.F.R. § 4.59 (1999)
Moreover, in Lichtenfels v. Derwinski, 1 Vet. App. 484, 488
(1991), the Court held:
Read together, DC 5003, and § 4.59 thus
state that painful motion of a major
joint or groups caused by degenerative
arthritis, where the arthritis is
established by x-ray, is deemed to be
limited motion and entitled to a minimum
10 percent rating, per joint, combined
under
DC 5003, even though there is no actual
limitation of motion.
Id. See also Hicks v. Brown, 8 Vet. App. at 417, 420-21
(1995).
The RO has assigned a 30 percent rating to the veteran's
residuals of a left elbow injury with resection of left
radius head and neck and degenerative joint disease, under
the provisions of Diagnostic Code 5212, impairment of radius.
This is the maximum disability rating under this Diagnostic
Code, as it is under Diagnostic Codes 5211 and 5213.
A higher disability evaluation is possible under Diagnostic
Codes 5209 and 5210. However, the medical evidence of record
does not demonstrate nonunion of the radius and ulna with a
flail joint or flail false joint. Although the May 1997 X-
ray revealed that there was no radial head of the veteran's
left elbow, a VA examiner twice (in December 1997 and
February 1999) concluded that the veteran did not have
disability equivalent to a flail joint. Consequently, a
higher disability evaluation under these diagnostic codes is
not warranted for the left elbow disability.
Consideration has also been given to whether the veteran is
entitled to a separate rating for arthritis causing actual or
functional limitation of motion in accordance with the
General Counsel Opinions cited above.
Diagnostic Codes 5205 is not for application because there is
no evidence of objective or functional ankylosis of the elbow
or impairment of flail joint. Moreover, the medical evidence
of record does not show that there is a limitation of flexion
of the veteran's left elbow to 45 degrees or less or that
there is a limitation of extension to 110 degrees or more.
In August 1994, the range of motion of the veteran's left
elbow was noted to be normal. While motion decreased
subsequent to that time, it did not meet the criteria for
compensable evaluations under Diagnostic Codes 5206, 5207 or
5208.
However, in reviewing the diagnostic code pertaining to
impairment of supination and pronation, the Board notes that
a 10 percent rating is warranted for limitation of supination
to 30 degrees or less under Diagnostic Code 5213. In this
regard, on VA examination in February 1999, the veteran had
limitation of supination from 0 to 10 degrees. As pronation
was reported to be normal on this same examination, a rating
in excess of 10 percent under this Diagnostic Code is not
warranted.
The Board has examined the provisions of 38 C.F.R. §§ 4.40
and 4.45 in order to evaluate the existence of any functional
loss due to pain, or any weakened movement, excess
fatigability, incoordination, or pain on movement of the
veteran's elbow joint. See DeLuca, 8 Vet. App. 202 (1995).
While the VA examiner noted in December 1997 that pain would
limit the veteran's ability to use his elbow, he was unable
to quantify this in terms of additional loss of range of
motion. This same examiner in February 1999 reported that it
would be speculative to try to determine the degree of
additional range of motion loss due to weakened movement,
increased pain, incoordination, or excessive use of the arm.
As such, the Board finds that neither 38 C.F.R. §§ 4.40 nor
4.45 provides a basis for a higher evaluation.
In summary, a disability evaluation in excess of 30 percent,
based on factors other than the presence of arthritis and
limitation of motion, is not warranted for the veteran's
residuals of a left elbow injury with resection of left
radius head and neck and degenerative joint disease, for the
reasons stated above. However, the veteran is entitled to an
additional 10 percent rating based on the presence of
arthritis and limitation of motion.
ORDER
Entitlement to a rating in excess of 30 percent for residuals
of a left elbow injury with resection of left radius head and
neck and degenerative joint disease, based on factors other
than the presence of arthritis and limitation of motion, is
denied.
Entitlement to an additional 10 percent rating based on the
presence of arthritis and limitation of motion is granted,
subject to the applicable criteria pertaining to the payment
of monetary benefits.
REMAND
The veteran has scarring related to the service connected
left elbow disability. Although the examiner noted the scar
was well healed, his description of the scar and its
manifestations are not detailed enough to determine if a
separate rating is warranted for this manifestation.
Where the record before the Board is inadequate to render a
fully informed decision, a remand to the RO is required in
order to fulfill the statutory duty to assist. Ascherl v.
Brown, 4 Vet. App. 371, 377 (1993).
The Board stresses to the veteran the need to appear for the
requested examination. Although the VA has a duty to assist
the veteran with the development of the evidence in
connection with his claim, the duty to assist is not always a
one-way street. 38 U.S.C.A. § 5107(a) (West 1991); Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991). Federal regulations
provide, in pertinent part, as follows:
§ 3.655 Failure to report for Department
of Veterans Affairs examination.
(a) General. When entitlement or
continued entitlement to a benefit cannot
be established or confirmed without a
current VA examination or reexamination
and a claimant, without good cause, fails
to report for such examination, or
reexamination, action shall be taken in
accordance with paragraph (b) or (c) of
this section as appropriate. Examples of
good cause include, but are not limited
to, the illness or hospitalization of the
claimant, death of an immediate family
member, etc. For purposes of this
section, the terms examination and
reexamination include periods of hospital
observation when required by VA.
(b) Original or reopened claim, or claim
for increase. When a claimant fails to
report for an examination scheduled in
conjunction with an original compensation
claim, the claim shall be rated based on
the evidence of record. When the
examination was scheduled in conjunction
with any other original claim, a reopened
claim for a benefit which was previously
disallowed, or a claim for increase, the
claim shall be denied.
38 C.F.R. § 3.655(a), (b) (1999).
In light of the veteran's contentions and the current medical
evidence of record, it is the decision of the Board that
additional development is necessary prior to appellate
review. Accordingly, the case be REMANDED to the RO for the
following action:
The veteran should be afforded a VA
surgical examination. The claims folder
must be made available to the examiner
prior to the examination. The examiner
should be asked to describe all scarring
attributable to the service connected
left elbow disability. The size and
location of such scar or scars should be
noted. As to each scar, the examiner
should note whether the scar is tender or
painful on objective demonstration or
whether the scar is poorly nourished with
repeated ulceration.
2. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the report does
not include adequate responses to the
specific opinions requested, the report
must be returned for corrective action.
38 C.F.R. § 4.2 (1999).
3. Following completion of the
foregoing, the RO should again review the
veteran's claim. If the benefit sought
on appeal remains denied, the veteran and
his representative should be furnished a
Supplemental Statement of the Case, and
given the opportunity to respond thereto.
If the veteran fails to appear for any
examination, the letter(s) notifying him
of the date of the examinations and the
address to which the letter(s) was sent
should be included in the claims folder,
and citation to 38 C.F.R. § 3.655 should
be including in the SSOC.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. The Board intimates
no opinion, either legal or factual, as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified. The veteran has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals